Decided: June 1, 2016
The Fourth Circuit reversed and remanded the district court’s decision.
Sometime before 2005, Agustin Lopez-Collazo, a native Spanish speaker who understood little, if any, English, illegally entered the United States from Mexico. In January 2005, Lopez-Collazo plead guilty to theft under Maryland law, and in May 2007 he was arrested again under Maryland law, and this this time plead guilty to second degree assault. Following his assault conviction in 2007, the Office of Immigration and Customs Enforcement (“ICE”) initiated expedited removal proceedings against him, during which immigration officers from the Department of Homeland Security (“DHS”) determined that his second degree assault conviction constituted an “aggravated felony.” Pursuant to the expedited removal proceedings, a Notice of Intent to Issue a Final Administrative Remove Order (“NOI”), which was in English, was properly served to Lopez-Collazo on October 5, 2007. On the backside of the NOI, Lopez-Collazo had signed following language admitting the allegations against him and waiving his right to contest the charges or seek judicial review. He was removed to Mexico in November 2007, however he returned shortly thereafter when he unlawfully crossed into Arizona in July 2008. When Lopez-Collazo was discovered in 2014, he was indicted with a federal crime for being illegally reentering in the United States after deportation.
At trial, Lopez-Collazo moved to dismiss the indictment, challenging the validity of the removal order because neither the charges nor the waiver language was written or translated to him in Spanish. Despite the government’s argument that Lopez-Collazo had explicitly waived his right to contest the charges or seek judicial review, the district court ruled that the waiver was invalid, because the lack of a translation prevented Lopez-Collazo from comprehending the NOI and the waiver language, and thus he was unable to make an informed decision. The district court further agreed with Lopez-Collazo’s argument that entry of the removal argument was fundamentally unfair because: his convictions for theft and assault did not constitute aggravated felonies, and as such he should have been offered “voluntary departure” from the United States, which fails as a basis for an illegal reentry conviction; and he was deprived of a meaningful opportunity to challenge his removal order or see voluntary departure due to the government’s failure to provide a Spanish translation of the NOI and the waiver. Ultimately, the district court found that, under current law, Lopez-Collazo’s Maryland assault conviction was not considered an aggravated felony and he should have been eligible for voluntary departure. Accordingly, the district court held that Lopez-Collazo had suffered prejudice, and the court granted Lopez-Collazo’s motion to dismiss the indictment. The government appealed, seeking reinstatement of the indictment.
In its analysis, the Fourth Circuit focused on the requirement of fundamental fairness in the entry of a removal order found in § 1326(d), which requires a defendant show that “(1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered from prejudice as a result of the defects.” With respect to the first prong, due process, at a minimum, requires that an alien subject to expedited removal be given “the opportunity to be heard at a meaningful time and in a meaningful manner.” As the Fourth Circuit points out, a meaningful opportunity cannot exist if the alien is unable to understand the proceedings without the aid of a translator. It follows, the government’s failure to provide Lopze-Collazo with a Spanish translation of the NOI infringed on his due process rights.
Turning to analysis of the second prong, whether or not Lopez-Collazo suffered prejudice as a result of the defect in his removal proceedings, the Fourth Circuit explained that the defendant must show that had such defects not occurred, a reasonable probability existed that he would not have been removed. The Fourth Circuit stated that the district court’s prejudice analysis fails because it applied the current law in determining whether Lopez-Collazo’s assault conviction constituted an aggravated felony, and not the modified categorical approach established by longstanding Fourth Circuit precedent in 2007. Doing so, according to the Fourth Circuit, disconnects the alleged prejudice from the defect in the removal proceedings.
Applying the appropriate modified categorical approach, the Fourth Circuit determined that due to the facts found in the formal charging document, which included Lopez-Collazo’s attempt to run down officers with his automobile and his striking and kicking of officers as they attempted to subdue him, his conviction for assault constituted a violent crime, and thus an aggravated felony precluding an option for voluntary departure. Lopez-Collazo’s ability to demonstrate prejudice hinges on his ability to demonstrate reasonable probability that he would not have been removed, which in turn depends on his eligibility for voluntary departure. As a result, he cannot show that prejudice occurred, and his argument for fundamental unfairness collapses.
Judge Gregory dissents, expressing his view that a misapplication of the law, as it is presently understood, can constitute a violation of due process that causes prejudice. He expressed how Lopez-Collazo’s unfortunate fate of being sentenced during a time of a tough-on-crime mentality, the constitutionality of which has been question and is now known to be improper.
Accordingly, the Fourth Circuit reversed the district court’s dismissal of the indictment and remanded the case with instructions that the indictment be reinstated, with Judge Gregory dissenting.
Charlotte Harrell